Knorr vs Maggi: Goltsblat BLP lawyers win a dispute for Unilever RUS against Nestle Russia over distribution of the “Knorr. Pure flavour. No magic.” slogan

03.09.2012

Goltsblat BLP lawyers have won the case for Unilever Rus LLC against Nestle Russia LLC over use of the Knorr. Pure Flavour. No Magic. slogan in commercials.

Moscow Circuit Federal Arbitration Court upheld the position of the lower courts and the defendant (Unilever Rus) and ruled that the alleged improper comparison with MAGGI (Nestle Russia) branded products in Knorr TV commercials was not proven.

The Goltsblat BLP litigation project team was led by Elena Trusova, the firm’s Dispute Resolution/IP Partner: "We were pleased to represent OOO Unilever Rus in this interesting case. We faced the challenging task of defending the client's interests despite existing court practice of imposing liability for an advertisement containing words sounding the same as the names of products or word trade marks of a competitor. We managed to prove that, in our case, it would not be correct to continue this trend. Our client acted appropriately, using a commonly used Russian word without any negative context in relation to the competitor's product and, despite the like-sounding words, there were no grounds for imposing liability. The practical significance of this case is that advertising companies may now feel confident and not worry about competitors filing claims relating to the content of their advertisement based on the latter identifying any like-sounding words and insinuations in the given advertisement."

Also involved in the defence were Senior Associates Yana Pylaeva, Natalia Belomestnova and Rimma Malinskaya.

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Case summary

In 2011, Nestle Russia LLC (the Claimant) filed a lawsuit with the Moscow Arbitration Court seeking recognition of the commercial for the Knorr Dusha Obeda jelly stock product marketed by Unilever Rus LLC (the Defendant) as an inappropriate advertisement in the meaning of the Federal Law on advertising and prohibition of its distribution. The action was triggered by the commercial’s use of the Knorr. Pure Flavour. No Magic. slogan, which the Claimant believed to contain improper comparison with the MAGGI branded products it produced and marketed. The Claimant also sought that the Unilever Rus commercials be recognised as unfair competition.

Court position

In its Resolution of 20 December 2011, the Moscow Arbitration Court dismissed the claims. The Resolution was later sustained by the Ninth Arbitration Court of Appeal on 13 March 2012 and also upheld by Resolution of the Moscow Circuit Federal Arbitration Court on 4 July 2012.

In its Resolution of 20 December 2011, the Moscow Arbitration Court dismissed the claims. The Resolution was later sustained by the Ninth Arbitration Court of Appeal on 13 March 2012 and also upheld by Resolution of the Moscow Circuit Federal Arbitration Court on 4 July 2012.

The courts ruled that it was not proven that the phrase Knorr. Pure Flavour. No Magic. contained an improper comparison, taking into account the Defendant’s arguments that the consonance of the words “магия” (magic) and “Магги” (Maggi) alone failed to evidence any breach of the Claimant’s rights, and relying on expert opinions of philologists and media communications professionals and sociological survey reports by VCIOM and ANO Levada-Centre. Goltsblat BLP lawyers managed to prove that the disputed slogan from the Defendant’s commercial contained no mention or reference to anything other than Knorr products and no linguistic or implied comparisons and that consumers established no association with MAGGI products after watching the Unilever Rus LLC TV commercials.

Notably, since no proof has been produced that the Defendant’s distribution of the commercial caused or could cause damage to the Claimant or be associated with other negative consequences for its business, the courts dismissed the Claimant’s claim for recognition of the distribution of the Knorr Dusha Obeda jelly stock product as unfair competition.

Practical implications

The case is essential since it saw the courts distinguish clearly between Knorr TV commercials and a series of advertising materials that have been officially confirmed to include improper comparisons (such as “Kvass is not Cola, Drink Nicola” (“Квас - НЕ кола. Пей НИКОЛУ”), “Good Rusks Won’t be Called Crusts” (“Хорошие сухарики корочками не назовут”), or “Don’t Hope for a Miracle – Drink Danon” (“Не надейся на чудо - пей ДАНОН”), “For Pigs Look for a Farm, for Appliances – Only for Kalinka” (“За свиньями - на ферму! За бытовой техникой - только в “Калинку””)).

In all of these cases, the Federal Anti-monopoly Authority and the courts factored in both the consonance of the name of the competitor’s product and the words included in the disputed slogan and a set of other factors, such as the slogan containing linguistic comparative structures and the advertisement containing mention of the competitor product and negative information about it, consumers developing an association with products of another entity and other essential circumstances. At the same time, since, in the Nestle Russia vs Unilever Rus case, the Defendant managed to prove that the Knorr commercial did not contain any comparisons, nor direct or indirect reference to the competitor’s product, in their judgements on the case, the courts emphasised that the mere consonance between a word included in the advertising statement and trade marks of other producers is manifestly not enough for the advertiser to be recognised as being in breach of the law or involved in unfair competition.

The case thus confirms real opportunities opening up for advertiser companies to prove the lawfulness of what they are doing if they face unjustified claims from competitors or controlling authorities in connection with use in advertisements of Russian language general usage words that are consonant with third party fanciful trade marks.

Contact details

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Ksenia Soboleva

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